though the intent of the parties was good, and no injury to the public would result in the particular case. The test is the evil tendency of the contract, and not its actual injury to the public in a particular instance." The Workmen's Compensation Act of this state, which was in effect at the time the contract between the parties to this suit was made, was the act of 1913. Section 7, pt. 1, of that act (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246k) provided that "during the first week of the injury the association [insurance company] shall furnish reasonable medical aid, hospital services, and medicines when needed, and if it does not furnish these immediately as and when needed, it shall repay all sums reasonably paid or incurred for same, provided reasonable notice of injury shall be given to the said association." Under the express provisions of that act, the insurance company in this instance would have been due plaintiff in error the amount of fees as claimed by him, and for which he sued the defendant in error, and the defendant in error would be liable to plaintiff in error for the reason that it collected such fees from the insurance company, unless it was understood and agreed between plaintiff in error and defendant in error that such fees should be retained by defendant in error. But if such contract or agreement was against public policy, and therefore unenforceable, and could not be interposed as a defense to this action, and plaintiff in error be considered in a position to raise that question, then plaintiff in error should still be permitted to recover the fees paid by the insurance company to defendant in error, as claimed by him. Now, it is claimed by plaintiff in error, among other things, that the principle of public policy here invoked by him is very similar to that which prevents a public officer from assigning the fees of his office before the same are earned. The rule which prevents a public officer from making a valid assignment of the fees pertaining to his office before same are earned by the incumbent is undoubtedly firmly established in this state, and was clearly announced by our Supreme Court in the case of National Bank v. Fink, 86 Tex. 303, 24 S. W, 256, 40 Am. St. Rep. 833; and the rule as there announced has been reaffirmed and followed by the appellate courts of this state in all subsequent cases where the point arose. We cannot concede, however, as is insisted by plaintiff in error we should, that the principle announced in those cases is decisive of the contention bere made by plaintiff in error; for we cannot see how any private individual, who may perform services as a physician, can be regarded as a public officer in any sense of the term, merely because he is permitted by law to recover the reasonable value of his services as against one who, by law, is made liable for such services. Therefore we hold that such authorities as are cited by plaintiff in error in support of his contention on this point, including State National Bank v. Fink, supra, and others following that case, are not decisive of the contention here made in his favor. Plaintiff in error has not cited any statute of this state or any rule of the common law which, in our opinion, forbade the making of such a contract as the one in question here; nor has any decision emanating from any appellate court of this state been cited, nor have we been able to find one, which, in our opinion, supports the contention that the contract here in question, if made, was illegal or unenforceable for reasons of public policy, and in the absence of such a statute of this state, or a rule of the common law, we are not prepared to hold that the contract here in question was in violation of public policy of this state. As showing the attitude of the judiciary relative to contentions of this character, we quote from Ruling Case Law, vol. 6, p. 710, § 119, as follows: doctrine that contracts should not be enforced "Without minimizing the importance of the if they contravene public policy, many courts have cautioned against recklessness in condemning contracts as being in violation of public policy. Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well-established rule of law. Other courts have approved the remark of an English judge, that public policy is an unruly horse, astride of Considerations such as these have led to the which one may be carried into unknown paths. statement that the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to decree a statute unconstitutional, should be exercised only in cases free from doubt. It would seem that by this statement it was not intended to place contracts on the same plane as statutes, for which there is undoubtedly no justification. All that the cautionary remarks may be interpreted to mean is that in determining whether a contract is against public policy there must be kept in view the rule that, where there is no statutory prohibition, the courts do not readily pronounce an agreement invalid on the ground of policy or convenience, but, on the regulate their affairs as they think proper. In contrary, are inclined to leave men free to other words, the courts will not declare a contract void on the ground of public policy unless it clearly appears to be in violation of the public policy of the state. A similar caution is one to the effect that before a court refuses to recognize a contract which is made in good faith, and stipulates for nothing that is malum fied that the advantage to accrue to the public in se or malum prohibitum, it should be satisfrom its holding is certain and substantial, not theoretical or problematical. It has also been observed that the power to invalidate agree-time repudiate that portion of the contract ments on the ground of public policy is so far- which gave to defendant in error the right reaching and so easily abused that it should be to collect and retain the fees paid by the incalled into action, to set aside or annul the surance company, and which were held by solemn engagements of parties dealing on equal defendant in error under the terms of the terms, only in cases where the corrupt or danclaimed contract. If such contract was made, gerous tendency clearly and unequivocally appears upon the face of the contract itself, or is then it was in virtue of its very terms that the necessary inference from the matters which plaintiff in error was upon the millyard at are expressed; and that the only apparent ex- all for the purpose of treating defendant in ception to this general rule is to be found in error's employés, and, whatever the contenthose cases where the contract, though fair and tion of plaintiff in error may be in this conunobjectionable upon its face, is a part of a nection, it is manifest to us that it is solely corrupt scheme, and is made to disguise the real upon this contract that plaintiff in error renature of the transaction. It is no doubt corlied for a recovery in this case. No other or different cause of action was interposed or If it suggested by his petition in the case. should be held that plaintiff in error can assail this contract in so far as it permitted the defendant in error to have and receive the money to be paid by the insurance company on the ground of public policy, then it would be to hold, in effect, that plaintiff in error might take advantage of a vicious and rect to say that, while public policy forbids the enforcement of an illegal or immoral contract, it is equally insistent that those which are lawful and contravene none of its rules shall be enforced, and not held invalid on a bare suspicion of illegality. The fact is that, as the courts are reluctant to declare a contract void as against public policy, they will refuse to do so if by any reasonable construction the contract can be upheld." Many authorities are cited by the author illegal contract to which he was undeniably a in support of the text. party, in so far as the same was beneficial or favorable to him, and repudiate it in all respects where not so. For this reason alone we would be inclined to overrule the assignment, even if we were of the opinion that the tendencies of the contract were such as to make it against public policy. Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053; Ins. Co. v. Pearson, 188 S. W. 513; Reed v. Brewer, 90 Tex. 144, 37 S. W、 418. We think these authorities to some extent at least sustain our views on this point. The fourth assignment is therefore overruled. [5] By the fifth assignment it is complained that the trial court committed error in overruling plaintiff in error's motion for a new trial, based upon the absence of testimony claimed by him to have been newly discovered. If, as was substantially found by the jury in this case, the plaintiff in error, upon entering the employ of the defendant in error as a physician at its mill plant, entered into an agreement or understanding with the defendant in error to the effect that plaintiff in error should be paid a certain cash compensation for his services in treating the employés of the millyard, with the further understanding or agreement that plaintiff in error would forbear to claim the fees for which the insurance company in this instance might become liable to plaintiff in error for his services to injured employés during the first week of injuries, under the Workmen's Compensation Act of this state then in effect, and, further, that such fees might be collected and retained by defendant in error, then we can see no reason for holding that It is shown by the record that this suit such contract was in violation of the public was filed in the district court of Liberty policy of this state, and we therefore decline county on September 9, 1916, and the trial to so hold. But if we are wrong in this view was commenced on the 13th and concluded of the question, and if the necessary tendency on the 15th days of December following. of such contract was vicious and against There was attached to the amended motion sound public policy, still there would be a for new trial an affidavit by one Lattimer, serious question as to whether we ought to which affidavit was dated December 18, 1916, sustain plaintiff in error's assignment on three days after the trial of this case was this point, for the reason that if the contract concluded. In this affidavit Lattimer stated, was made he was undeniably a party to it, among other things, that he was the superinand if the same was vicious, and necessarily tendent of the Union Lumber Company at tended to injure the public generally, or any its mill at Milvid, and that it was he who class or members of the public, or was employed plaintiff in error as a physician for against the public welfare in any respect, and the company at said mill, and that in such therefore against sound public policy, then it contract of employment the agreement bemust be admitted that the plaintiff in error tween himself and the plaintiff in error, Dr. was in pari delicto with the defendant in Sherrill, was that Dr. Sherrill should receive error in entering into the contract. It seems a salary of $150 per month, and in addition to us that the plaintiff in error should not be to that should receive $30 per month from permitted to profit by the contract to the ex- the Southwestern Hotel Company, and that tent of receiving and retaining the compensa- also, as an extra inducement to Dr. Sherrill, tion that was allowed him by the defendant it was further understood and agreed by Latin error under its terms, and at the same timer, acting for the Union Lumber Company, and Dr. Sherrill that he, Dr. Sherrill, should receive and have all medical fees to be paid by the insurance company for treating employés at the mill during the first week of injury to them, and that it was upon such understanding and agreement that Dr. Sherrill accepted the position as physician at the mill, and that his employment thereunder began on the 1st day of January, 1914. It is contended by plaintiff in error that these facts stated in the affidavit of Lattimer were in the nature of newly discovered evidence, and that same was highly material, and not cumulative, and that he was not lacking in diligence to procure such evidence at the trial, and that, therefore, as a matter of right, he was entitled to a new trial, to the end that he might have the benefit of this evidence on the part of Lattimer, and, further, that the trial court abused its discretion in denying the motion for new trial on that ground. It is stated by the plaintiff in error in his brief that he was compelled to depend upon his own testimony alone for a recovery in this case, and that in all probability the result would be different on another trial if it should be allowed him, and he should have the benefit of the evidence of Lattimer. contrary, that it must be held that plaintiff in error knew, or had reason to believe, that he could prove these facts by Lattimer at the very time he voluntarily proceeded to trial in this cause. In justice to plaintiff in error, it is proper to say that the record discloses that as early as June, 1916, plaintiff in error commenced efforts to locate Mr. Lattimer, and that he made a number of inquiries as to the whereabouts of Lattimer during the interval between June and shortly prior to the trial below. It seems that Mr. Lattimer, after he severed his connection with the Union Lumber Company at Milvid, which was shortly after plaintiff in error entered its employ, traveled about considerably, and resided or sojourned at different places in this state, as well as at different places in the state of Louisiana; during which period of time, with the exception of one occasion in the city of Houston, Tex., plaintiff in error never saw Lattimer, and did not know his whereabouts, or of his own knowledge how Lattimer might be reached; and it might be conceded that the diligence used by plaintiff in error and his counsel to ascertain the whereabouts of Lattimer, with a view to having the benefit of his evidence, until a short while prior to the date of the trial in the lower court, was sufficient. But it does not follow from this fact that Lattimer's evidence was newly discovered, nor does it follow that plaintiff in error was not lacking in diligence when he failed to move for a postponement or continuance of the cause, when reached for trial, in order that he may have further time to find Lattimer and have the benefit of his evidence. It is clear from the record in this case that the plaintiff in error, as early as April, 1916, was fully aware of the contention of the defendant in error, to the effect that under his contract of employment with defendant in error the latter was entitled to collect and retain the fees paid by the insurance company hereinbefore mentioned, and that such contention would be made and insisted upon when this case should proceed to trial in the lower court. Notwithstanding this knowledge on plaintiff in error's part, when the case was reached for trial in the lower court, in December following, no postponement or continuance was requested by him for the purpose of procuring this evidence on the part of Lattimer, but it seems from the recording of diligence to procure such evidence, and that he announced ready for trial, with full knowledge that he would be dependent upon his own evidence alone as to the character of the contract or agreement between him and defendant in error, and with full knowledge that the defendant in error would dispute and contradict his own evidence touching the nature and extent of this contract. Now, in the first place, we are not prepared to say that this evidence on the part of Lattimer could be considered "newly discovered" in any sense of the term; because if it be true that plaintiff in error had such an agreement and contract with Lattimer, as the latter states in his affidavit was had, certainly the plaintiff in error, being a party to that contract, was fully aware of its terms, at least substantially so, and we cannot see how it could be contended that such evidence was, in fact, "newly discovered," in the legal sense of that term; but it seems to us, on the Before this court would be authorized to hold that the trial court was in error in denying the motion for new trial in this case, it should be able to say that Lattimer's evidence was, in contemplation of law, newly discovered, and that the same was material, and that plaintiff in error made a clear show have the benefit of same on the trial below, and in addition thereto that such evidence was of such a character as would probably cause a different result on another trial. That such evidence would have been material to plaintiff in error on the trial below cannot be questioned, and, as before stated, it might be conceded that plaintiff in error, from about the 1st of June until a short time before the trial in December, used diligence, which would ordinarily be sufficient, to locate Lattimer and obtain his testimony; but we cannot say, in view of this record, that it is probable that Lattimer's evidence, had it been before the jury, would have caused a different result in this case, and we are clearly of the opinion that his evidence cannot be said to have been newly discovered. Under such circumstances, we think it was the clear duty of the plaintiff in error to have moved for a postponement or continuance of his case when the same was called for trial, | 3. EVIDENCE 419(9)-PAROL EVIDENCEin order to procure the evidence of Lattimer, CONSIDERATION. and, since it is apparent from the record that no such action was taken by him, we would not be authorized to hold that the court committed error in denying his motion for a new trial. [6] The rule in this state is that motions for new trial based upon the ground of "newly discovered" evidence, in the proper sense of the term, are addressed to the sound discretion of the trial judge, and, where such motions are denied by him, the appellate court will not reverse the judgment for that reason, unless the latter court can say from the record that the trial court clearly abused the discretion which the law gives him in such matters, and in this instance this court is of the opinion that it would not be authorized to so hold. In the case of Johnson v. Brown, 65 S. W. 485, the Court of Civil Appeals at San Antonio, speaking through Chief Justice James, held, in substance, that a new trial sought on the ground of newly discovered evidence was properly refused by the trial judge, where the existence of such evidence was known at the time of the trial, but not the whereabouts of the witness, and no continuance or postponement was requested in order that such evidence might be had. We are of opinion that that case is squarely in point on the question here raised, and the holding there meets with our approval. See. also, De Hoyes v. G. H. & S. A. Ry. Co., 52 Tex. Civ. App. 543, 115 S. W. 75. This disposes of all the assignments of error found in plaintiff in error's brief, and from what we have said above it follows that this court is of the opinion that none of them should be sustained, and that the trial court's judgment should be in all things affirmed; and it will be so ordered. HARRIS v. MANN et al. (No. 1428.) (Court of Civil Appeals of Texas. Dec. 4, 1918.) Amarillo. 1. PLEADING 34(3)-GENERAL EXCEPTION. As against a general exception to a petition, every reasonable intendment will be indulged in favor of the petition's allegations. Plaintiff, in an action for fraudulent representations as to time for which lease could be renewed, inducing his purchase of certain land and lease of other land, can show that part of the recited consideration in the deed to him of the land bought was for the lease. Appeal from District Court, Yoakum County; W. R. Spencer, Judge. Action by M. B. Harris against W. R. Mann and others. From a judgment sustaining a general exception to the petition, plaintiff appeals. Reversed and remanded. E. S. Rowe, of Plains, for appellant. Dallas Scarborough, of Abilene, for appellees. HUFF, C. J. [1] This is an appeal from a judgment sustaining a general exception to plaintiff's original petition. As we interpret the petition, the cause of action is based upon fraud and deceit, inducing the plaintiff to enter into a contract. While the allegations are indefinite and somewhat involved, and it is rather hard to determine just what is intended, yet, in the face of a general exception, every reasonable intendment will be indulged in favor of the allegations. [2] It is alleged that the defendants agreed to sell 417 acres of land, and also to sell to plaintiff a preference lease right at an annual value of $38.40 per section, on five sections of additional land, and as an inducement thereto the defendants represented to plaintiff that three of the sections belonged to the estate of minors in the hands of their legal guardian, and that the minors would not be of age for seven years, and that the land could not be sold until they were of age; that the other two sections were the property of some investment company, holding the land for higher price, and that the land would not be for sale for a number of years; that defendant Mann held a written lease to all said leased lands which contained a preference right to him and his assigns, to release said lands so long as they were for lease, which would not be less than seven years and very likely longer; that plaintiff was induced to believe said representations, and was induced to purchase the section and the preference lease right to the five sections, which he would not have done but for the 2. PLEADING 49 NATURE OF ACTION- representations. It is alleged that the deed FRAUD OR CONTRACT. Petition alleging contract to sell plaintiff land and a lease of other lands, false representations as to the length of time for which the lease could be renewed, the making of a deed for the land bought, and a purported assignment of the lease, and that a certain part of the recited consideration of the deed was for the assignment, and seeking damages, held for fraud, and not to recover on a contract. to the section purchased recited the agreed consideration for that section as well as for the five leased sections, but that in fact $1,500 thereof was the consideration for the preference lease of the five sections; that defendants purported to assign to plaintiff such lease, representing at the time, however, that the leases themselves were then out of their possession and at another place in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Invalidity of shipping contract under Interstate Commerce Act (U. S. Comp. St. 1916, § 8563 et seq.) does not preclude shipper from recovering for loss or injury to goods by reason of carrier's negligence, or from injury due to delay in transportation, or for damages caused by carrier willfully misrouting goods, compelling shipper to pay higher rate of freight. vaults of the bank; that they never deliver- | objection that their knowledge was based on ed such lease, but that plaintiff, relying upon hearsay, testify that the market was lower on their representations, moved on the land, the afternoon of day on which destination was etc. It is alleged all of these representa- reached than during morning of same day prior tions so made were false and untrue, which to their arrival, where they were experienced cattlemen, had shipped a great many cattle, and induced the plaintiff to enter into the con- had received market reports regularly. tract, and that thereafter plaintiff was eject3. CARRIERS 215(1)-LIVE STOCK-LIABILed from the leased lands and put to great TY FOR LOSS-INVALID CONTRACT. expense, etc. He seeks to recover the agreed value or amount paid for the lease, and for some other special damages not regarded as necessary to set out. This is not a suit to recover on a contract, but it is an action on representations inducing the contract by fraud and deceit. The action is on the fraud and deceit. The facts extraneous of the deed were not alleged for the purpose of varying the terms of the deed, but to the end of showing that plaintiff was induced to accept the deed and pay the $1,500 by reason of the fraudulent representations of the defendant. United States Gypsum Co. v. Shields, 106 S. W. 725; General Bonding & Casualty Insurance Co. v. Mount, 183 S. W. 783; White v. Peters, 185 S. W. 659; Weeks v. Stevens, 155 S. W. 667. [3] The mere fact that the allegations are that the entire consideration was recited in the deed would not be such a recitation as would preclude the proof that the representations and that part of the price paid was in fact for the leased sections. The recitation of the consideration of the amount paid in the deed for the land, the fee of which was purchased, would not preclude the proof that $1,500 of that amount was in fact paid for the lease. This case, as we conceive it, does not fall under the rule announced in the case of Matheson v. C-B Live Stock Co., 176 S. W. 734. Some of the damages alleged are not recoverable, but we shall not go into the measure of damages which should be applied. We simply hold that the general exception should not have been sustained. The case will be reversed and remanded. Appeal from Wheeler County Court; L. D. Miller, Judge. Action by A. Manby against the Chicago, C. E. Gustavus, of Amarillo, and N. H. HALL, J. The following statement is adopted from appellant's brief: "This was a suit in the county court of Wheeler county by A. Manby, against the Chicago, Rock Island & Gulf Railway Company, to recover damages on account of alleged injury to a shipment of five cars of cattle from Shamrock, Tex., to Kansas City, Mo., on August 19, 1916. It was alleged that the shipment was unduly delayed en route and that the cattle were insufficiently watered at Caldwell, Kan., at which point they were unloaded for feed, water, and rest, and that the market on which they were sold had declined below what it was at the time they should have arrived, and that they lost in weight and in marketable appearance." The defendant pleaded certain special exceptions and a denial of any negligence in handling the shipment, and specially that the shipment was made under live stock contracts and tariffs filed with the Inter CHICAGO, R. I. & G. RY. CO. v. MANBY. state Commerce Commission, and under (No. 1431.) (Court of Civil Appeals of Texas. Dec. 4, 1918.) rules and regulations of that body, authorizAmarillo. ing the transportation of interstate shipments of live stock in carload lots, and that under those tariffs, rules, and regulations the freight rate on carload shipments was proportionately lower than on less than carload shipments, and it was provided therein that only owners or bona fide employés of the owner would be transported with shipments as caretakers, and the number of persons that were entitled to be transported and re323(4) — HEARSAY — MARKET ceive free return transportation were speci 1. CARRIERS 227(1)-LIVE STOCK-ACTION -PLEADING DAMAGES. In action for delay in shipment of live stock, an allegation that the market had declined below that at time cattle should have arrived, and that cattle had lost in weight and marketable appearance, was sufficiently specific allegation of damage sustained. 2. EVIDENCE PRICE. In action for delayed delivery of live stock, witnesses who accompanied shipment could, over fied; that the plaintiff's shipment of cattle consisted of five carloads, and that he tendered them to the railway company, one For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |